To elegantly paraphrase Beyonce, “Girls, we run this forced arbitration motha, yeah.”
Not that forced arbitration is a gender-specific problem. Far from it. Who agrees to forced arbitration? No human. Or, “who agrees with forced arbitration?” No human. I use the term “human” here to distinguish persons of the human variety from persons of the “corporate” variety, which the law these days essentially treats equally. (More on this point can be found in Adam Winkler’s new book, We the Corporations, about the corporate civil rights movement. Yeah, it’s a thing.)
Relying on their every-expanding "corporate civil rights," companies now stick forced arbitration clauses into any document they can. Among other things, these clauses are forcing women to shut up about sexual abuse, both in the workplace and in situations where an abuser has power and control over them. The advantage for the abuser is that forced arbitration proceedings are typically secret. For proof of that, see the letter sent today by 35 public interest groups to California Attorney General Xavier Becerra,
… urging him to investigate the practices of private arbitration firms that operate in secret, in violation of state law. …
In recent months, Former Fox News anchor Gretchen Carlson, Uber whistleblower Susan Fowler, and other leaders in the #MeToo movement are pushing federal legislation to lift the veil of secrecy that perpetrators exploit by imposing arbitration, enabling them to repeatedly assault victims with impunity.
“As President Trump’s lawyers continue to use secret arbitration to silence allegations against him, the public interest in transparency is clear,” said Amanda Werner, campaign consultant with the Consumers for Auto Reliability and Safety (CARS) Foundation.
Indeed, when it comes to sexual harassment, people may know about “non-disclosure” clauses (NDAs), like the ones the Weinstein Company used to silence Harvey Weinstein’s victims and from which the company has now released the survivors. Less discussed is the equally-troubling fact that companies typically try to force sexual harassment disputes into arbitration. That is certainly what happened to Gretchen Carlson and why federal legislation has been introduced.
We don’t know much about how arbitration might have been used at the Weinstein company. (People may have been paid quickly and forced to sign NDAs.) But we do know that plenty of other companies use them, even – shamefully – Facebook, whose COO is Lean In author and women’s right champion, Sheryl Sandberg. “The arbitration process Facebook uses is very ‘official and appropriate, a spokeswoman told HuffPost.” They later said, “We have never had an employee file a sexual harassment arbitration.” Well, since a main consequence of forced arbitration clauses is the disappearance of claims, that would make perfect sense – although the point seems lost on Facebook.
So it turns out that there’s another thing Facebook and Trump have in common (other than, apparently working towards electing that man President): forced arbitration!
Back in 2012, Trump and his offensive lawyer, Michael Cohen, won – in arbitration – a $5 million defamation claim against former Miss USA pageant contestant Sheena Monnin, who dared to “question the integrity of the pageant’s results.” Wrote the Daily Beast, “Because Monnin had signed a hefty contract with the Miss Universe Organization, the case was argued at arbitration.” And now, she's been silenced. (When Cohen spoke with The Daily Beast, he said, “I will make sure that you and I meet one day while we’re in the courthouse. And I will take you for every penny you still don’t have. And I will come after your Daily Beast and everybody else that you possibly know.” Lovely.)
To silence two current accusers, Stormy Daniels and Karen McDougal, Trump and Cohen are clearly trying to use forced arbitration clauses against them. Daniels and McDougal are suing to get out of these contracts – including NDAs - and “neither woman is waiting for a court's permission to speak out." Writes the Washington Post:
However confident Daniels, McDougal and their lawyers are of victories, there are still legal risks. So why are Daniels and McDougal unafraid to talk now — and provoke the full fury of the famously litigious president?
One simple explanation could be that the mere act of filing lawsuits broke both women's contracts. Their nondisclosure agreements require all disputes to be resolved in confidential, private arbitration proceedings.
Since Daniels and McDougal are in violation of their deals anyway, they might figure there is no point to taking half-measures — kind of like a dieter on his cheat day figures there is no point to ordering a calorie-free beverage with his triple Whopper. Just get the 40-ounce Dr Pepper, and just do the interview.
By the way, if you want more evidence of how much Trump loves forced arbitration, check out all he’s done to further their use nationwide in the Center for Justice & Democracy scorecard.